John Williams v. State of Tennessee ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 9, 2013
JOHN WILLIAMS V. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 01-08325 John Fowlkes, Judge
No. W2012-00746-CCA-R3-PC - Filed May 16, 2013
The petitioner, John Williams, appeals the denial of his petition for post-conviction relief.
The petitioner is currently serving an effective sentence of 161 years following his
convictions for five counts of especially aggravated kidnapping and three counts of
aggravated robbery. In this appeal, he contends that his petition for relief was erroneously
denied because his right to a public trial was violated and that trial counsel was ineffective
in failing object to or raise that violation. Following review of the record, we affirm the
denial of the post-conviction petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D. K ELLY THOMAS,
J R., and J EFFREY S. B IVINS, JJ., joined.
Robert C. Brooks, Memphis, Tennessee, for the appellant, John Williams.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Teresa McClusker, District
Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural History and Factual Background
The facts underlying the petitioner’s convictions for five counts of aggravated
kidnapping and three counts of aggravated robbery are set forth in the original opinion filed
by this court in the post-conviction proceedings, and it is not necessary to the outcome of this
appeal to restate them in their entirety. John Williams v. State, No. W2010-01013-CCA-R3-
PC (Tenn. Crim. App., at Jackson, Sept. 1, 2011). In summary, the petitioner, along with five
other individuals, in an apparent attempt to locate a man whom had previously broken into
the petitioner’s home, terrorized their victims, including a seven-year old child. The victims
were held at gunpoint, threatened with death, some were forced into the trunk of a car, some
were viciously beaten, and eventually money was taken from three of the victims. Id.
Despite his assertions that he was not involved in these events, the petitioner was found
guilty following a jury trial and sentenced to an effective term of 161 years in the Department
of Correction. This court affirmed the convictions following a direct appeal. State v. Jarvis
Williams and John Williams, No. W2002-03010-CCA-R3-CD (Tenn. Crim. App., at Jackson,
Dec. 23, 2003), perm. app. denied, (Tenn., May 10, 2004).
Thereafter, the petitioner filed a petition for post-conviction relief alleging that the
trial court had violated his constitutional right to a public trial and that trial counsel rendered
ineffective assistance of counsel by failing to object to the exclusion of the petitioner’s
friends from the trial or to raise that issue on direct appeal. Williams, No. W2010-01013-
CCA-R3-PC. A hearing on the matter was held in February 2010, after which the post-
conviction court denied relief. The petitioner appealed to this court, which concluded that
the petitioner had waived his public trial claim by failing to raise it in the trial of his case or
on direct appeal. However, this court concluded that the post-conviction court had failed to
make findings with regard to the petitioner’s claim of ineffective assistance of counsel.
Therefore, the case was remanded to the post-conviction court “for findings of fact and
conclusions of law on the [p]etitioner’s ineffective assistance of counsel claim.” Id. No new
hearing was held on the matter and, on March 28, 2012, the post-conviction court entered a
written order denying relief on the ineffective assistance of counsel claim, which set forth
findings of fact and conclusions of law supporting the denial. The petitioner has timely
appealed.
The facts to be utilized in our review of the petitioner’s issue were adduced from the
original appeal of the denial of post-conviction relief as stated in this court’s opinion:
At the post-conviction hearing, Derrick Rucker testified that he was
employed at an auto body shop until he injured his back six weeks before the
hearing. He said he and the Petitioner were close friends and knew each other
for more than fifteen years. He said that he was present for the Petitioner’s
trial on the morning of September 4, 2002, and that he watched two or three
people testify before the lunch recess. He said that he went to lunch with two
other friends and that when they returned, the bailiff told them they could not
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enter the courtroom for a security purpose. He denied that any problems
occurred that morning or that the judge or bailiff spoke to him or his friends
about their behavior or appearance. He said there was nothing disruptive or
improper about their behavior or appearance. He said his purpose for going
to court was to support his friends because the Petitioner’s aunt was unable to
attend the trial.
On examination by the court, Mr. Rucker testified that more than eight
people were involved in the trial and that multiple people were in the audience.
He said the case was “high profile” and covered extensively by the television
news. He remembered that the charges included violent crimes and thought
the case involved attempted murder. He said that the media tried to make it
look like the case was related to gang activity but that he was not a “gangster”
and neither were his friends. He said he and his two friends were the only
persons kept out of the courtroom. He said his past convictions included
burglary, possession of marijuana, and some misdemeanors.
On further direct examination, Mr. Rucker testified that his felony drug
conviction was in 2004 and that he was last released from custody on July 7,
2008. He said he had no problems with the law since then.
On cross-examination, Mr. Rucker agreed that the Petitioner’s charges
were “something similar” to especially aggravated kidnapping and aggravated
robbery. He agreed there were at least three victims whom he saw ready to
testify and said he also thought a little boy was a victim. He said that he and
his friends asked why they could not return to the courtroom and that the
bailiff would tell them only that it was for a security reason. On examination
by the court, Mr. Rucker testified that he went through the security system at
the courthouse on the day of the trial.
Troy Hughlett testified that he had been employed for two years at a
warehouse. He said he and the Petitioner had been good friends for fifteen or
twenty years. He said he was in the courtroom on the morning of September
4, 2002, with Mr. Rucker and Mario Wrenthrob. He said that the petitioner’s
family was not there that morning and that he attended the trial to support the
Petitioner. He said that while he and his friends were at the trial, no one spoke
to them about their behavior or appearance. He said that when the court
recessed, he and his friends went downstairs in the courthouse to eat lunch.
He said that when they tried to return to the courtroom, the bailiff stopped
them and said they had been barred. He said the bailiff did not explain the
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reason.
On cross-examination, Mr. Hughlett testified that the bailiff did not give
him or his friends an opportunity to ask why they had been barred from the
courtroom. He agreed that many people were in the courtroom and that it was
a newsworthy case. He said he did not remember the charges against the
Petitioner or anything else about the case. He said he had no felony
convictions.
On examination by the court, Mr. Hughlett testified that he did not
attend the trial after that day. He said he and his friends heard one woman
testify before the lunch recess. He said he was not present for the jury
selection. He said the Petition and the Petitioner’s brother were on trial.
Mario Wrenthrob testified that he had been employed at McDonald’s
for about a year and that he and the Petitioner had been friends for many years.
He said he attended the first day of the Petitioner’s trial to support the
Petitioner and “to see what was really going on.” He did not think the
Petitioner’s family was able to attend. He said the neither the judge nor the
bailiff told him or his friends their clothing or behavior was inappropriate and
that there was nothing inappropriate about their clothing or behavior. He said
that he left the courtroom for the lunch recess with his friend and his cousin
and that when they returned, they were told they could not enter. He said the
only reason given was a “security purpose.” He said he knew of no one else
who was not allowed to enter the courtroom.
On cross-examination, Mr. Wrenthrob testified that he asked bailiff why
they could not reenter the courtroom but that the bailiff would only say it was
for security reasons. He said they left after they were barred. He did not
remember news personnel at the trial or whether the case was gang-related.
He said he had been convicted of a misdemeanor marijuana charge but not a
felony.
On the court’s examination, Mr. Wrenthrob testified that when the
bailiff told him and his friends they could not enter the courtroom, the door
had closed but they were about to enter. He denied being asked to leave while
court was in session.
The petitioner’s counsel testified that he practiced primarily in criminal
defense. He said that Mr. Rucker looked “vaguely familiar” but that he had
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never seen Mr. Hughlett or Mr. Wrenthrob.
At this point, the trial court noted for the record:
[H]is friends all left. And one of them I believe Mr.
Rucker was trying to talk with [the petitioner] when he was
leaving. The officers had to tell him not to communicate with
[the petitioner]. His close friends are now gone.
Counsel testified that he vaguely remembered that someone was told to
leave the courtroom at the trial because of a security issue but that he did not
remember specific details. He said he reviewed his notes from the trial and did
not find any mention of people excluded from the trial. He said that it was a
difficult trial and that he was occupied with the job at hand. He remembered
that a bailiff mentioned the exclusion of some individuals for security reasons.
He said, “It didn’t shock me to the point that I objected or to the point that I
took notes on it.” He said he would usually note anything that might need to
be raised in a motion for new trial or on appeal.
Counsel testified that he thought he was told when he returned from the
lunch recess by either a bailiff or the judge about the exclusion of individuals.
He did not know if the Petitioner was told. He did not remember any
discussion in court regarding whether the individuals should be excluded. He
said that if the trial court had explained that it was considering the exclusion,
he would have objected because his client needed support. When asked why
he did not raise an objection or raise the issue in the motion for new trial, he
said he did not remember. He said he reviewed the trial transcript and his
notes but found no mention of the individuals’ exclusion from the courtroom.
He noted that it had been eight years since the trial. He agreed it was a
possibility that there was “nothing to remember” about the issue.
Counsel testified that around the time of this trial and in the same
courtroom, he was involved in a murder trial during which an individual or
two were asked to leave because of their clothing. He said that as he tried to
remember what happened in this trial, he began to confuse the two. He said
the courtroom audience for the Petitioner’s trial was divided into prosecution
and defense sides. He said that the case involved seven victims and that there
was a great deal of support on the prosecution’s side but very little on the
Petitioner’s side. He did not remember meeting the Petitioner’s parents and
did not remember any of the Petitioner’s family attending the trial.
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On cross-examination, counsel testified that he had practiced criminal
law for over ten years and that he had represented defendants in ten to fifteen
jury trials and about the same number of bench trials. He said the Petitioner
and his brother were both charged with multiple counts of especially
aggravated kidnapping and aggravated robbery. He agreed that the District
Attorney’s Office labeled the Petitioner’s case a “gang case” and that the trial
prosecutor was the gang crime prosecutor. He said the trial lasted at least five
days. He said four of the seven victims knew the Petitioner before the offenses
occurred. He said he did not remember if the Petitioner asked him to object
when he friends were barred from the courtroom. On redirect examination,
counsel testified that the did not know whether the Petitioner was aware of his
friends’ exclusion from the courtroom during the trial.
On examination by the trial court, counsel testified that he was aware
during the trial that the Petitioner had friends there in support of him and that
when the bailiff told him individuals were excluded, he knew they were
supporters of the Petitioner. He said he reviewed the trial transcripts and
found no mention of the individuals exclusion. He said that he hoped he
would have objected and asked for a hearing if the Petitioner told him that he
friends were excluded but that he did not recall whether the Petitioner said
anything. He said that the State’s witnesses were terrified and that the
atmosphere was tense.
The petitioner testified that his trial began on September 4, 2002, and
lasted four days. He said that Mr. Rucker, Mr. Hughlett, and Mr. Wrenthrob
were his good friends and that he had known them for fifteen or twenty years.
He said they had nothing to do with the offenses in the case and were at the
trial to support him. He said his family was not at the trial because counsel
told him the case would be continued. He said that he was surprised that the
trial started when it did. He said that his three friends were in the courtroom
the first morning of the trial but not after the lunch recess and that he learned
of their exclusion when he called home that night. He said his friends did not
cause a disruption with their behavior or appearance. He did not remember if
the judge told him about the exclusion and said he would have asked counsel
to object if he had known.
On cross-examination, the Petitioner testified that to his knowledge,
counsel did not know about his friends’ exclusion. He denied that his friends
caused a disruption when they left the post-conviction hearing. He agreed that
one friends said something to him before leaving and said that the friend asked
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if he wanted some money on his books. He denied that his friends were
smiling and laughing and that one friend gave him a sign with his hands. He
said he did not see his friends do anything wrong at the post-conviction
hearing or the trial. He said that his family lived in Chattanooga and that they
offered to attend the trial, but that he told them he was okay and they did not
need to attend.
On redirect examination, the Petitioner testified that he thought he said
something to counsel about his friends’ exclusion but that he was not sure. He
said that although he asked counsel to include the issue on appeal, counsel
refused. He agreed that if his family lived in Memphis, he would have asked
them to attend, but he said that the six-hour drive from Chattanooga was too
much for them when he already had friends there to support him. On recross-
examination, the Petitioner testified that the State appointed counsel to
represent him on appeal.
On further redirect examination, the Petitioner testified that when his
friends asked during the post-conviction hearing if he wanted money on his
books, it meant on his account at the jail commissary. In response to a
question from the court, the Petitioner agreed court officers told his friends to
stop talking to him during the post-conviction hearing and to leave the
courtroom. The trial court accepted a copy of the trial transcript as an exhibit
and requested that defense counsel mark the section containing the lunch
recess at issue for the court’s review.
The prosecutor testified that she vaguely remembered an incident
during the first day of the trial when the judge would not allow three young
men to return to the courtroom after the lunch recess. She said that she was
assigned to the District Attorney’s Office gang unit at the time of the trial and
that the unit considered the Petitioner’s case to be gang-related. She said that
there were seven victims and six defendants in the case and that there were
many people present in the courtroom during the trial. She said the victims
were frightened and easily intimidated. She said they told her that people in
the courtroom were gesturing and making faces at them or saying things. She
told the trial court, and it ruled that none of the victims had to “go through
that” and excluded the three individuals. She said that one of the victims
recognized at least one of the excluded individuals and that the court officer
obtained the individuals’ names. She said her conversation with the judge was
not on the record but was held openly in court.
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On examination by the court, the prosecutor testified that she received
an except of the trial transcript provided by the Petitioner’s post-conviction
counsel. She said that Ms. Somerville was on the witness stand before and
after the exclusion occurred and that Ms. Somerville’s young son still had to
testify. She said specific individuals were brought to her attention and were
excluded from the courtroom. She said that the trial court did not address the
excluded individuals because the court ruled to exclude them before they
returned to the courtroom and that after the ruling, the bailiff did not admit
them. She agreed the incident occurred during the second day of testimony
and third day of the trial. She said testimony that day began with Omar
Coleman, who was followed by Ms. Somerville and her son. On redirect
examination, she testified that the jury was not in the courtroom when she
brought the witnesses’ concern to the trial court’s attention or when the court
ruled to exclude the individuals.
A review of the trial transcript shows that on September 5, 2002, three
individuals were, in fact, barred from the courtroom: The trial court said the
following:
“The court: All right. The three young men that were
seated on this side of the courtroom early this morning. They’re
not here now. They’re not to be allowed back in the courtroom
for the duration of the trial. We can’t have the conduct that is
threatening in any manner or suggest intimidation in any
manner. And so if that continues they’ll just be kicked out of
the courtroom. It’s as simple as that. Bring in the jury, please.”
Id.
In a written order, the post-conviction court again denied relief finding that trial
counsel was not ineffective. The petitioner has again appealed the ruling.
Analysis
On appeal, the petitioner frames his issue as follows:
Whether the [petitioner’s] right to a public trial was violated and/or
whether defense counsel was ineffective in failing to raise the issue. Three of
the [petitioner’s] friends, the only people in attendance in support of the
[petitioner], were excluded by the trial court without complying with a single
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requirement for the partial closure of a trial. Defense counsel failed to object
or subsequently raise the issue. Prejudice is presumed.
From the wording of this issue, as well as the argument contained in the petitioner’s
brief and reply brief, it is apparent that he is again asking for review of the issue of whether
he was denied his right to a public trial. In fact, he makes clear in his reply brief that he is
again raising that specific issue. We agree with the petitioner that the issue is separate and
distinct from an ineffective assistance of counsel claim and can be raised on post-conviction.
However, his argument ignores that the issue has already been addressed by this court on
post-conviction review. In the prior appeal, this court found that the issue had been waived.
The case was remanded back for findings of fact and a ruling on the issue of ineffective
assistance of counsel. Therefore, that is the only issue properly before this court at this time,
and it will be reviewed pursuant to that applicable law. The petitioner may not again raise
an issue which has been previously determined by this court.
In order to obtain post-conviction relief, a petitioner must prove that his or her
conviction or sentence is void or voidable because of the abridgement of a right guaranteed
by the United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103 (2010);
Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner must prove
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct.
R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “‘Evidence is
clear and convincing when there is no serious or substantial doubt about the correctness of
the conclusions drawn from the evidence.’” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an appeal
of a court’s decision resolving a petition for post-conviction relief, the court’s findings of
fact “will not be disturbed unless the evidence contained in the record preponderates against
them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).
A criminal defendant has a right to “reasonably effective” assistance of counsel under
both the Sixth Amendment to the United States Constitution and article I, section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington, 466
U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of
counsel, a petitioner must prove both deficient performance and prejudice to the defense.
Strickland, 466 U.S. at 687-88. Failure to satisfy either prong results in the denial of relief.
Id. at 697.
For deficient performance, the petitioner must show that “counsel’s representation fell
below an objective standard of reasonableness” under prevailing professional norms, despite
a “strong presumption that counsel’s conduct falls within the wide range of reasonable
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professional assistance.” Id. at 688-89. “In other words, the services rendered or the advice
given must have been below ‘the range of competence demanded of attorneys in criminal
cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). The petitioner must prove that counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687.
When reviewing trial counsel’s performance for deficiency, this court has held that a
“petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful, tactical
decision made during the course of the proceedings.” Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994). The reviewing court “must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). However, “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Prejudice in turn requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by counsel, even
if professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691. The court clarified that
prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687. “The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the
trial court’s factual findings de novo with a presumption of correctness, unless the evidence
preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But
the trial court’s conclusions of law on the claim are reviewed under a purely de novo
standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).
In denying relief on this issue, the post-conviction court stated:
. . . [T]his Court must make a fair assessment of performance without
the distorting effects of hindsight, to reconstruct the circumstances surrounding
[the] challenged conduct, and evaluate the conduct from Trial Counsel’s
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perspective during the trial. After reviewing the circumstances faced by Trial
Counsel in this cause, this Court finds that Trial Counsel provided effective
performance. Nothing occurred during the trial to undermine confidence in the
outcome.
It is reiterated that the testimony of Petitioner’s friends w[as] not
credible. This Court notes that during the trial, when the three witnesses were
denied reentry, they were never identified to the Trial Court as being friends
and supporters of Petitioner. Also, none of Petitioner’s friends contacted Trial
Counsel during or after the trial in order to lodge complaints or objections to
being removed. Further, they lack credibility in light of their actions when
leaving the courtroom during the post-conviction hearing, where they were
ordered to stop speaking with Petitioner and were escorted out of the
courtroom.
Petitioner’s post-conviction testimony does not support his cause. He
said his three friends were in the courtroom on the first morning of the trial,
but were not there after the lunch recess. He didn’t know they had been
excluded until he called home that night. Yet, throughout the remainder of the
trial, he did not inform Trial Counsel of the exclusion. Petitioner testified that,
to his knowledge, Trial Counsel did not even know about the exclusion. It
appears to the Court that Petitioner’s friends were never identified as
supporters until they testified in the Post Conviction hearing, some eight years
after the trial. Thus, this entire issue was insignificant to Petitioner and not
important enough to even mention to his lawyer. Further, and for the same
reasons, Petitioner’s allegations that he asked Trial Counsel to appeal the
exclusion issue is not credible.
Finally, Trial Counsel testified that he had never seen the three
witnesses before, although one of them looked somewhat familiar. He vaguely
remembered someone telling him that a person had been removed from the
courtroom for security reasons. He said it didn’t shock him to the point of
objecting nor did he make any reference to the incident in his notes. Trial
counsel’s practice was to put in his notes anything that was significant enough
to be raised in a motion for a new trial or appeal. No such note was made
concerning this issue. In addition, Petitioner never complained to Trial
Counsel or asked him to object at any time during the trial about exclusion of
his friends.
Trial Counsel’s primary concern was the serious nature of the case and
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defending Petitioner against the charges. He indicated that it was a difficult
trial, lasting at least five days, and he was preoccupied with the job at hand.
Petitioner and his codefendant were charged with multiple counts of especially
aggravated kidnapping, and aggravated robbery. It was a gang case that
attracted considerable media attention. There were at least seven victims who
were terrified, and the atmosphere surrounding the trial was tense.
Again, Petitioner failed to prove by clear and convincing evidence that
his Trial Counsel was ineffective.
Petitioner has also failed to show that he was prejudiced by action or
inaction of his counsel. This Court is mindful of that fact that if the record
shows a public trial violation, prejudice is implied. However, Petitioner
waived his public trial claim by failing to raise it in the trial court. Thus,
prejudice must be viewed by the Strickland standard. Nothing has been shown
to undermine confidence in the outcome of the case. Further, even if counsel
had objected to the exclusion, the outcome of the trial would not have been
different. Thus, Petitioner is not entitled to relief on this claim.
In their argument against relief in this case, the State relies heavily upon this court’s
opinion in the petitioner’s co-defendant’s post-conviction. See Jarvis Q. Williams, No.
W2012-00052-CCA-R3-PC (Tenn. Crim. App., at Jackson, Dec. 27, 2012). In that case, this
court determined that the co-defendant’s counsel was not ineffective for not properly
addressing and preserving the public trial issue. The proof presented in that case was the
testimony of Mr. Rucker and Mr. Hughlett, whose testimony was not found to be credible by
the post-conviction court. Id. While acknowledging that the conclusion reached in that case
is not binding in the instant case, the State urges that it should be heavily considered.
The petitioner, on the other hand, argues that the co-defendant’s case is
distinguishable because the co-defendant failed to raise the actual issue of denial of his right
to a public trial separately from the issue of ineffective assistance of counsel. While we
agree that only the petitioner did in fact raise the public trial violation on post-conviction, we
fail to see how that distinguishes the case on the issue of ineffective assistance of counsel.
As previously noted, that is the only issue properly before the court at this time, and the only
one which we shall consider. The violation of the right to a public trial issue has been
waived, as previously concluded by this court. All the petitioner’s arguments to the contrary
are without merit, including that prejudice should be presumed. Likewise, his assertions that
the post-conviction court’s credibility determinations and its determination regarding the
confidence in the outcome of the trial are irrelevant are incorrect. Rather, as appropriately
applied by the post-conviction court, it is the applicable ineffective assistance of counsel
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standards which govern the outcome of the case.
After review of the record, we conclude that nothing in the record preponderates
against the post-conviction court’s findings. We agree with the post-conviction court’s
conclusion that there is not sufficient evidence to establish that trial counsel was even aware
of the exclusion of the petitioner’s friends. While trial counsel testified that he vaguely
remembered people being barred from the courtroom because of threatening behavior, he did
not deem the exclusion important enough to even reference it in his notes. Nor is there
sufficient evidence in the record to support that trial counsel was aware that the men
excluded were in fact friends of the petitioner. While we agree that the petitioner was “under
no obligation to tell trial counsel anything,” had he done so and informed trial counsel of the
situation, trial counsel might well have taken the actions the petitioner now complains that
he didn’t. As pointed out by the State, effective assistance of counsel requires neither
perfection nor omniscience on the part of trial counsel. See Moffitt v. State, 29 S.W.3d 51,
55 (Tenn. Crim. App. 1999). Trial counsel cannot be found defiecient for failing to take
actions to remedy a situation he was not aware of. The petitioner bears some responsibility
in this case.
Nor has the petitioner established his claim with regard to prejudice. He has made no
offer of proof with regard to how the exclusion of these three men who were acting in a
threatening and intimidating manner to other witnesses would have changed the outcome of
the trial. Nor has the petitioner shown that if a hearing had been held on the exclusion that
the men, who again were threatening witnesses, would have been allowed to remain in the
courtroom. The statement made by the trial court on the record that such behavior would not
be tolerated implies otherwise. The petitioner has failed to meet his burden of proof and is
entitled to no relief.
CONCLUSION
Based upon the foregoing, the denial of post-conviction relief is affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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